FOI requesters should not encourage others to apply for the same information in order to put pressure on the authority to release it. The tactic is likely to backfire leading to the request being refused as vexatious, as a recent tribunal case shows (Michael Sivier v Information Commissioner, EA/2013/0277).
Mike Sivier had applied to the Department for Work and Pensions (DWP) for the number of Incapacity Benefit and Employment and Support Allowance claimants who had died in 2012 showing how many had died while their claims were being assessed or after being found fit for work. The DWP had previously released figures for 2011. But it had refused a third party’s request for the figures to be updated, maintaining that the information was due to be published anyway.
Mr Sivier believed the refusal was a delaying tactic to conceal damaging statistics. He applied for the figures himself, while posting to supporters on his blog: “I strongly encourage you to do the same. There is strength in numbers”. A few days later he blogged: “If you believe this cause is just, go thou and do likewise”. Someone else had commented on Mr Sivier’s blog: “If we swamp [the Department] with requests they surely must respond”. Another poster had asked “is it okay to copy and paste your FOI request to send it to DWP?” and Mr Sivier had answered “Sure, just make sure they know you’re making it in your own name”.
The department subsequently received 24 identical requests for the information within a few days of each other. It refused Mr Sivier’s request as vexatious, maintaining that the requests were part of a campaign to disrupt its work. The Information Commissioner’s Office (ICO) upheld the refusal. It found that although Mr Sivier and the others had a serious purpose, answering each individual request would have been burdensome. It also held that the language in posts which Mr Sivier had allowed to be published on his blog would have harassed DWP staff.
Mr Sivier appealed to the First Tier Tribunal, which disagreed with several of the ICO’s conclusions. It did not attach much weight to any possible burden to the department. It saw nothing in the language used that would have distressed a “reasonably robust employee”. It accepted that Mr Sivier’s motive in encouraging others to make the same request was to get his request answered. It even went so far as to express “considerable sympathy” for him, though it did not know whether he was right to claim that the DWP was attempting to deliberately conceal the statistics.
But it found that Mr Sivier had misused the FOI Act by attempting to generate multiple requests as a way of putting pressure on the DWP to release the information. He had “converted an unexceptional request, on a matter causing justifiable public concern, into one that constituted misuse of the freedom of information regime” and the DWP had been entitled to refuse it as vexatious. The Tribunal added that, had he not attempted to involve others, Mr Sivier’s request “might well have resulted in disclosure of the information requested.”
This is not the first time that the Tribunal has found that directing large numbers of FOI requests at an authority as a means of exerting pressure on it is likely to make requests vexatious. But in most previous cases, additional factors were present: the volume of requests had caused a real burden or the requester had behaved obsessively or had been highly abusive. This was not the case here. It was solely the attempt to generate a wave of identical requests that led to the vexatious finding.
This highlights the importance of relying on the force of argument – not weight of numbers – in using FOI. It’s fine to seek information to try and press an authority to change its position. But the volume of requests must not become the means of exerting the pressure.
For more advice on avoiding FOI pitfalls come to one of the Campaign’s FOI training courses for requesters.